United States v. Johnny Mack, III

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 16, 2020
• Docket: 19-3763
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0353n.06

No. 19-3763

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jun 16, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff - Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE JOHNNY G. MACK, III, ) NORTHERN DISTRICT OF ) OHIO Defendant - Appellant. ) )

Before: CLAY, WHITE, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge. Johnny Mack pled guilty to carjacking. At Mack’s

sentencing, the district court applied an enhancement due to Mack’s use of a knife during the

carjacking. Mack disputes that he used a knife, and disputes whether the district court made a

finding to that effect in accordance with the Federal Rule of Criminal Procedure 32. Finding no

error in the district court’s application of the sentencing enhancement, we AFFIRM the judgment.

I.

Mack approached a woman at a gas station seemingly to ask directions. When the woman

entered her car to look up directions on her phone, Mack’s presence made her feel uneasy. So she

removed a knife from her center console, placing it under her leg. Her uneasiness was well

founded. Wielding a knife of his own, Mack would soon attempt to carjack the vehicle. The

woman fended off Mack with her knife, sustaining wounds to her legs, stomach, and hands in the

process. Mack fled the scene. He was later arrested. Case No. 19-3763, United States v. Mack

Mack pled guilty to carjacking, in violation of 18 U.S.C. § 2119(1). As relevant here,

Mack’s Presentence Report (PSR) utilized a four-level sentencing enhancement applicable when

“a dangerous weapon was otherwise used” in the crime. U.S.S.G. § 2B3.1(b)(2)(D). Mack filed

an objection, denying he used a knife in the struggle for the car. To his mind, the victim’s wounds

must have resulted from her defending herself with her own knife.

Mack re-raised his objection at sentencing. The government introduced photos of the

victim’s wounds. After hearing argument from the parties and examining the pictures, the district

court applied the enhancement: “I think the knife was a dangerous weapon. And I do find that the

defendant was responsible for the knife.” Later, in considering the 18 U.S.C. § 3553(a) sentencing

factors, the court further discussed the severity of the crime, noting that Mack “used a knife in

trying to carry this out.” Following additional arguments by the parties, the court sentenced Mack

to a 120-month, within-Guidelines sentence. Mack timely appealed.

II.

In reviewing Mack’s sentencing proceeding, we examine legal conclusions de novo and

factual findings for clear error. See United States v. Kaminski, 501 F.3d 655, 665 (6th Cir. 2007).

The thrust of Mack’s argument on appeal is that the district court failed to make its own

factual finding at sentencing regarding Mack’s use of a knife, in violation of Federal Rule of

Criminal Procedure 32. Rule 32 dictates when a district court must make such findings. For

sentencing matters that are undisputed, the court “may accept any undisputed portion of the

presentence report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). Not so, however, for matters

in dispute. “[F]or any disputed portion of the presentence report or other controverted matter,” the

court “must . . . rule on the dispute or determine that a ruling is unnecessary.” Fed. R. Crim. P.

32(i)(3)(B). It follows that in assessing whether the district court complied with Rule 32 in

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applying the dangerous-weapon enhancement here, we ask first whether Mack disputed his use of

a knife. If so, we then ask whether the court ruled on the disputed issue. See United States v.

Poulsen, 655 F.3d 492, 513 (6th Cir. 2011) (“First we ask whether the amount was in dispute. . . .

Second, we examine whether the district court ruled on the amount in dispute.”).

1. What does it mean for a defendant to put an issue “in dispute” at sentencing? Generally

speaking, we have required a defendant to “produce some evidence that calls the reliability or

correctness of the alleged facts into question.” United States v. Cover, 800 F.3d 275, 278 (6th Cir.

2015) (per curiam) (quoting United States v. Lang, 333 F.3d 678, 681 (6th Cir. 2003)). That

evidence, we have explained, typically must be “more than a [defendant’s] bare denial.” Id.

(quoting Lang, 333 F.3d at 681). “A defendant cannot show that a PSR is inaccurate by simply

denying the PSR’s truth . . . he must produce some evidence that calls the reliability or correctness

of the alleged facts into question.” United States v. Adkins, 729 F.3d 559, 570 (6th Cir. 2013)

(quoting Lang, 333 F.3d at 681).

Here, a bare denial is all Mack has mustered. While denying that he used a knife in his

carjacking attempt, he concedes he has no evidence to corroborate that claim. The government,

on the other hand, presented photos of the victim’s wounds. And it offered the victim’s statement

to the police that “the knife was in the possession of the defendant.” True, Mack’s denial was

consistent throughout, from arrest to sentencing. But consistency alone does not clothe an

otherwise naked denial of the facts in the PSR. Faced with nothing but Mack’s bare denial, the

district court was free to “rely entirely on the PSR” findings at sentencing. See id. (noting that

where the defendant made “bald assertions” and “failed to produce any evidence” regarding the

truth of his underlying criminal adjudication that the district court “properly relied on the report”);

Cover, 800 F.3d at 278–79 (finding that a bare denial of the “accuracy of [a PSR] statement” did

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not place the issue in dispute where defendant “produced nothing to contradict any of the evidence

in the presentence report” that justified the enhancement).

On occasion, it bears noting, we have not firmly enforced the requirement that a defendant

offer more than a bare denial to create a cognizable “dispute” to a PSR’s findings. But those

circumstances typically involve loss calculations or a similarly complex sentencing analysis. One

example is United States v. Vanhoose, 446 F. App’x 767 (6th Cir. 2011). We held there that the

district court improperly relied on the PSR where the defendant objected to the PSR’s loss

calculation and requested an evidentiary hearing. Id. at 769 (explaining this “triggered” Rule 32);

see also, e.g., United States v. Patel, 694 F. App’x 991, 995 (6th Cir. 2017) (finding that Rule 32

was “triggered” when the defendant in a fraudulent health care scheme asserted that there was no

evidence that certain bills were fraudulent); United States v. Huffman, 529 F. App’x 426, 432 (6th

Cir. 2013) (requiring fact-finding where a defendant in a pill-mill scheme objected to the loss

amount and “disputed [the] drug-quantity amount because some of the prescriptions were

legitimate”); but see United States v. Burdette, No. 19-1257, 2019 U.S. App. LEXIS 26955, at *4–

5 (6th Cir. Sep. 5, 2019) (order) (finding that “[b]ecause [defendant] failed to produce any evidence

to support her objection, the district court was entitled to rely on the presentence report’s tax loss

amount”).

But that does not describe today’s case. The lone issue here is whether Mack possessed a

knife. There are no financial calculations to make. Nor are there are other complex considerations

regarding quantity or quality. In this straightforward setting, we routinely hold that a defendant’s

bare denials do not require a specific factual finding at sentencing. See Cover, 800 F.3d at 281–

82 (finding that defendant’s claims that “his conviction involved a 15-year-old victim” as opposed

to a 12-year-old, did not create a dispute); Lang, 333 F.3d at 682 (finding that a district court could

4 Case No. 19-3763, United States v. Mack

rely on the PSR when the defendant’s “attorney’s unsupported letter contesting a material fact in

the original PSR and denying the applicability of [the enhancement]” was the only evidence

offered); United States v. Al-Said, No. 19-1504, 2020 U.S. App. LEXIS 8629, at *7–9 (6th Cir.

Mar. 18, 2020) (order) (finding that the defendant’s statement that “any claims of fraud on her part

are denied” was a “bare denial” and the district court appropriately relied on the presentence report

(quoting Cover, 800 F.3d at 278)); United States v. Smith, 743 F. App’x 606, 611 (6th Cir. 2018)

(finding that the defendant’s “threadbare assertion” and explicit statement that he had a “factual

disagreement with [the] enhancement” was insufficient to create a dispute when compared against

other evidence); United States v. Jock, 148 F. App’x 519, 522–23 (6th Cir. 2005) (finding that the

defendant’s attorney’s presentation of an “alternative interpretation” of the facts in a PSR and a

statement that “it was not [the defendant’s] gun” were insufficient to create a dispute).

For those reasons, the district court might well have been entitled to rely on the findings of

the PSR.

2. Assuming, for the sake of argument, that Mack did place his possession of a knife in

dispute, we then ask whether “the district court . . . actually [found] facts . . . by a preponderance

of the evidence.” United States v. White, 492 F.3d 380, 416 (6th Cir. 2007). The government

bears the burden of “convinc[ing] the court that the PSR’s facts are actually true.” Lang, 333 F.3d

at 681 (quoting United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994)). While the court

may not summarily adopt disputed PSR factual findings, “Rule 32 does not dictate that the court

must ‘give a lengthy explanation for its ruling.’” United States v. Cleveland, 677 F. App’x 210,

212 (6th Cir. 2017) (quoting United States v. Vonner, 516 F.3d 382, 388 (6th Cir. 2008) (en banc)).

At Mack’s sentencing hearing, the district court made the appropriate finding. It stated:

“I do find that the defendant was responsible for the knife,” adding that Mack “used a knife in

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trying to carry this out.” In making that finding, the district court considered written arguments

from the parties, looked at photos of the victim’s wounds, and heard argument from the parties

which, together, satisfied Rule 32. See United States v. Geerken, 506 F.3d 461, 467 (6th Cir. 2007)

(finding Rule 32 satisfied where the court “viewed a representative sample of the images” and the

defendant “produced no evidence to challenge the correctness of the factual findings of either the

probation officer or the district court”); Cleveland, 677 F. App’x at 213 (“[T]he district court . . .

‘did not summarily adopt the government’s position, but heard arguments from both parties’”

before it ruled on the defendant’s restitution amount (quoting United States v. Mason, 294 F. App’x

193, 201 (6th Cir. 2008) (alterations omitted))).

Not only did the district court “literal[ly] compl[y]” with Rule 32, but it also satisfied the

Rule’s underlying objectives, namely, to “enhance[] the accuracy of the sentence” and create

“clarity of the record.” White, 492 F.3d at 415 (quoting United States v. Treadway, 328 F.3d 878,

886 (6th Cir. 2003)). By considering written and oral arguments, reviewing photos, and stating

that Mack was responsible for the knife, the district court sought to “enhance the accuracy of the

sentence.” It is difficult to see what more the district court could have done here when, as Mack

acknowledges, his “denial was all he could do under the circumstances.” Nor is there a lack of

clarity as to why Mack received the sentencing enhancement—he was responsible for the knife

that harmed the victim.

We thus do not see clear error in the district court’s finding that Mack was responsible for

the knife.

3. Mack also claims that the district court erred by not “append[ing] a copy of the court’s

factual determinations to the PSR as required by Fed. R. Crim. P. 32(i)(3)(C).” Mack is correct

that, ordinarily, the district court “must append a copy of the court’s determinations under this rule

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to any copy of the presentence report made available to the Bureau of Prisons.” Fed. R. Crim. P.

32(i)(3)(C). But here, Mack does not allege that any misinformation was in fact provided to the

Bureau of Prisons. See Mason, 294 F. App’x at 202 n.3 (“Nowhere does [defendant] allege that

the court sent a copy of the PSR to the Bureau of Prisons without attaching a copy of the

findings.”). Nor could he, it seems, when the PSR itself fairly reflected the relevant facts that

informed Mack’s sentencing. Cf. United States v. Bartlett, 416 F. App’x 508, 512 (6th Cir. 2011)

(stating that a court complies with Rule 32(i)(3)(C) when the PSR is amended to reflect a judge’s

additional findings at sentencing). In any event, Mack does not claim that any purported error

prejudiced him. See Mason, 294 F. App’x at 202 n.3 (“[Defendant] alleges no prejudice as a result

of any such failure, making remand unnecessary.”); United States v. Lantz, 443 F. App’x 135, 147

(6th Cir. 2011) (same). We thus see no error in this context either.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.